Petition for Writ of Certiorari — Henrich v. Texas

Supreme Court, U.S.

FILED

JAN 20 98T

JOSEPH F. SPANIOL,

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

CHARLES MICHAEL HENRICH, PETITIONER,

V.

THE STATE OF TEXAS, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

ON PETITION FOR A WRIT OF CERTORIARI TO

THE TEXAS COURT OF APPEALS FOR

THE FIFTH SUPREME JUDICIAL CIRCUIT

MELVYN CARSON BRUDER

11817 Quincy Lane

Dallas, Texas 75230

(214) 351-5597

EDGAR A. MASON

12221 Merit Drive

Suite 850

Dallas, Texas 75229

(214) 991-0200

Counsel for Petitioner

i

QUESTION PRESENTED FOR REVIEW

Whether the Petitioner’s rights under the Sixth and

Fourteenth Amendments were violated by the admission at his

trial of incriminating statements made by the Petitioner to a co-

defendant, who was an undisclosed prosecution informant,

after a complaint had been filed and after the prosecutor was

aware that the Petitioner was represented by counsel.

LIST OF PARTIES

The parties to the proceedings in the Texas Court of

Appeals for the Fifth Supreme Judicial District are:

Charles Michael Henrich

The State of Texas

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..........:cccsssseeeeseseeeesseees i

BE | ISRAELIS Ae aa an me een ORE Renee i

De EE IIIS 15. insastncnrmndaisanssacesicbnhbeapanniiiauenens ili

SL DOF MT RO OND I

STATEMENT OF JURISDICTIONAL GROUNDS ..............000000008+ 2

CONSTITUTIONAL PROVISIONS INVOLVED..........::220000000e00¢+ 2

I TI sink chess cssccsecice dacnliavinnercacesinsrnncetboon 3

REASONS FOR GRANTING THE PETITION...............ccccceeeeseees 4

Ueki cineca hah GAAS hd deck cated cre cccaerssannenenannes 9

CA Ir I oasis sss stcstaserienercviineens 10

APPENDIX A

Opinion of the Texas Court of Appeals :

Henrich v. State, No. 05-82-00818-CR, 21, 1985,

Bae CIE BIS wsvccticssctieratconincinpbehaveomeks A-1

APPENDIX B

Opinion of the Texas Court of Criminal Appeals

Henrich v. State, No. 140-84, 24 July 1985........... B-1

APPENDIX C

Opinion of the Texas Court of Appeals

Henrich v. State, No. 05-82-00819-CR, 25

IIIS FI caisson cannzcvereciipdtaciiiagenceenetonaaties C-1

li

TABLE OF AUTHORITIES

CASES:

Alcorta v. Texas, 355 U.S. 28 (1957) ...cc.ccceceseseessseeeeeee 8

Brewer v. Williams, 430 U.S. 387 (1977) ......ccccccceeeeeeeee 5

Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App. 1967)... 6

Henrich v. State, 666 S.W.2d 185 (Tex.App.—Dallas

1983) 697 S.W.2d 841 (Tex.App.—Dallas 1985)..... 1,2

Henrich v. State, 694 S.W.2d 341 (Tex.Cr. App. 1985) l

Kuhlman v. Wilson, J. anuung 100 SAL. 2616

a scctenduensenenteaeace 5,6

Maine v. Moulton, a ky OO S.Ct. 477

CE oc cssctaecanasnnonins passirn

Massiah v. United States, 377 U.S. 201 (1964)........... passim

Michigan v. Moseley, 423 U.S. 96 ( ETD J eaveorersossvensssceees 7

Moran v. Burbine USS. , 106 S.Ct. 1135

€¢. 2°) Pe Raeda i aibnkidsiheouiieieees ial edidal a cicmcanisinidishbebuasioons 5,8,9

we EE Gy ) ER . 8

Powell v. Alabama, 287 U.S. 45 (1932) .o...cccecceceseeeeeeeee 5

Rochin v. California, 342 U.S. 165 (1952) vc. 8

Spano v. New York, 360 U.S. 315 (1959)... eee 5

United States v. Henry, 447 U.S. 264 (1980) 0.0... 5,6,9

United States v. Wade, 388 U.S. 218 (1967) occ. 7

Wooldridge v. State, 653 S.W.2d 811 (Tex.Cr.App.

Cee scecccauousauneces

CONSTITUTION:

| Ee passim

I IT a. ssnusouetacanvovducooenace 2,5,8

STATUTES:

ea csnibsucnntonsenmonbane 2

I, EE A wo. ccccuvocecnoncveccenceseoees 6

+ ee —_

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

CHARLES MICHAEL HEINRICH,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

ON PETITION FOR A WRIT OF CERTORIARI TO

THE TEXAS COURT OF APPEALS

FOR THE FIFTH SUPREME JUDICIAL CIRCUIT

Charles Michael Henrich, Petitioner, petitions for a writ of

certiorari to review the judgment of the Texas Court of Appeals

for the Fifth Supreme Judicial District affirming the Petitioner’s

conviction.

OPINIONS BELOW

The opinion of the Texas Court of Appeals reversing the

Petitioner’s conviction on 12 December 1983, is reported at 666

S.W.2d 185, and is reproduced in Appendix A, infra.

The opinion of the Court of Criminal Appeals of Texas

reversing the judgment of the Court of Appeals, delivered on 24

July 1985, is reported at 694 S.W.2d 341, and is reproduced in

Appendix B, infra.

2

The opinion of the Texas Court of Appeals affirming the

Petitioner’s conviction following the remand from the Court of

Criminal Appeals, delivered on 25 September 1985, is reported

at 697 S.W.2d 841, and is reproduced in Appendix C, infra.

JURISDICTION

The judgment of the Texas Court of Appeals became final

on 22 October 1986, when the Court of Criminal Appeals

refused the Petitioner’s motion for rehearing filed following that

court’s refusal of the Petitioner’s petition for discretionary

review.

On 16 December 1986, Mr. Justice White extended the

‘time within which to file a petition for writ of certiorari herein

to 20 January 1987.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right ... to have the Assistance of Counsel for his

defence.”

Section | of the Fourteenth Amendment to the United

States Constitution provides, in pertinent part:

... [NJor shall any State deprive any person of life,

liberty, or property, without due process of law...

STATEMENT OF THE CASE

In July 1981, the Petitioner, then an employee of Lone Star

Gas Company, was questioned by his employer about irregula-

rities that had been discovered in shipping records subject to

the Petitioner’s control, and was thereafter suspended. Within

a few weeks, Lone Star Gas Company filed a complaint with

the Dallas District Attorney charging the Petitioner and Walter

Lowe with theft of money from the company. Assistant district

attorney Steve Khoury then sent letters to the Petitioner and

Lowe advising them of the complaint. Following a joint

conference between the co-defendants and an attorney at which

defensive strategy was discussed, each co-defendant retained

separate counsel. The Petitioner’s counsel contacted Khoury,

identified himself as the Petitioner’s counsel, and inquired of

the nature of the complaint. Thereafter, Lowe and his counsel

went to Khoury’s office at which time Lowe agreed to cooperate

with the State against the Petitioner. At Khoury’s insistence

and under his direction, Lowe placed and surreptitiously

recorded three telephone calls to the Petitioner for the purpose

of eliciting statements from the Petitioner of an incriminating

nature. The recordings of those calls, which contained in-

culpatory statements made by the Petitioner, were admitted

into evidence at the Petitioner’s trial.

How the issue was raised in the state courts

The Petitioner filed a pretrial motion to suppress which

sought the exclusion of the recorded telephone conversations.

Following a hearing on such motion, the trial court denied the

motion.’ At such hearing, the Petitioner argued that since the

telephone conversations were initiated by Lowe at the prose-

cutor’s instigation and after the prosecutor knew the Petitioner

had retained counsel to represent him, the initiation of the

1 Vol. 1, Statement of Facts of trial proceedings (SF) pp. 2-85.

The argument of counsel and the trial court’s ruling appear at pp. 82-

85.

4

conversations violated the Petitioner’s right to counsel rende-

ring the conversations (or recordings of them) inadmissible.

He relied upon Massiah v. United States, 377 U.S. 201 (1964).

The trial court denied the motion, concluding that because the

conversations occurred before indictment, the conduct in this

case was distinguishable from that in Massiah. On appeal, the

issue raised herein was presented to the state appellate courts;?

however, because the initial appellate opinion reversed the

Petitioner’s conviction upon state law dispositive of the federal

issue, see Appendix A, infra, which became the focal issue of all

subsequent appellate proceedings, the federal issue was never

thereafter reached, despite the Petitioner’s repeated efforts to

have the issue discussed.

REASONS FOR GRANTING THE WRIT

This case presents a Sixth Amendment issue substantially

similar to that decided in Maine v. Moulton, supra, and a

Fourteenth Amendment due process issue arising from the

prosecutor’s purposeful circumvention of the Petitioner’s right

to the benefit of counsel! by a state prosecutor.

2 See, e.g., Brief for the Appellee, pp. 7-9, Brief for the Appellee,

No. 05-82-00819-CR, Tex.App.—Dallas; Brief for the Petitioner, pp.

6-8, No. 0140-84, Tex.Cr.App.; Appellant’s Rebuttal to State’s Re-

sponse on Petition for Discretionary Review, pp. 1-2, No. 05-82-

00819, Tex.App.—Dallas; Appellant’s Supplemental Brief on Petition

for Discretionary Review, No. 1163-85, Tex.Cr.App.; State’s Re-

sponse to Appellant’s Supplement to his Petition for Discretionary

Review, pp. 1-2, No. 1163-85, Tex.Cr.App.; Appellant’s Motion for

Rehearing on Petition for Discretionary Review, pp. 2-4, No. 1163-

85, Tex.Cr.App.

3 Jbid.. In an effort to secure a ruling on his federal claim, the

Petitioner cited, and the State responded to several decisions upon

which the Petitioner relies in this petition, including Maine v. Moulton,

___ US. ___, 106 S.Ct. 477 (1985), and Massiah.

Argument

“The right to the assistance of counsel guaranteed by the

Sixth and Fourteenth Amendinents is indispensable to the fair

administration of our adversarial system of criminal justice.”

Maine v. Moulton, supra, US. at , 106 S.Ct. at 483.

In order to implement this right and to protect a layman, who

“requires the guiding hand of counsel at every stage of the

proceedings against him,” Powell v. Alabama, 287 U.S. 45, 68-

69 (1932), this Court has fashioned a basic rule that “[o]nce

the right to counsel has attached and been asserted, the State

must of course honor it,” Maine v. Moulton, supra, U.S. at

, 106 S.Ct. at 484, “and not interfere with the efforts of a

defendant’s attorney to act as a ‘medium between [the suspect |

and the State.’ ” Moran v. Burbine, ___. US. ; , 106

S.Ct. 1135, 1145, 3186 (1986).

One form cf prosecutorial “interference with the efforts of

a defendant’s attorney recognized by this Court as being

violative of the Sixth and Fourteenth Amendments is the

interrogation of the accused by a representative of the state at a

time when he was entitled to the benefit of counsel. See Spano

v. New York, 360 U.S. 315 (1959); Massiah v. United States,

supra; United States v. Henry, 447 U.S. 264 (1980); Maine v.

Moulton, supra; Brewer v. Williams, 430 U.S. 387 (1977).4 In

each case, the accused either had counsel or was entitled to

counsel when the interrogation occurred. And, in each case, the

accused was denied the benefit of counsel, either through the

surreptitious nature of the interrogation, as in Massiah, Henn,

and Moulton, or by direct police questioning, as in Spano and

Brewer.

4 Compare Kuhlman v. Wilson, US. ., 106 S.Ct. 2616,

2628-2631, 3212-3213 (1986), holding that the unsolicited confession

made by an inmate to a jailhouse informant is not protected by the

Sixth Amendment.

In this case, Lowe was not a passive listener, but was ordered by

the prosecutor to engage the Petitioner in conversation aimed at

eliciting incriminating statements.

There can be no question that the recorded telephone

conversations between Lowe and the Petitioner constituted

“secret interrogation by investigatory techniques that are the

equivalent of direct police interrogation.” Kuhlman v. Wilson,

supra, US. at , 106 S.Ct. at 2630. Lowe’s telephone

calls were deliberately made at the request and under the

direction of the prosecutor for the specific purpose of eliciting

incriminating statements from the Petitioner. This conduct is

indistinguishable from the conduct condemned in Massiah,

Henry, and Moulton.

At the time the conversations took place, the Petitioner’s

right to counsel had attached or had been asserted such that the

state, through its prosecutor, “knowingly circumvent[ed] the

accused’s right to the assistance of counsel, “Maine v. Moulton,

supra, US. at , 106 S. Ct. at 490, or acted in such an

offensive manner as to deprive the Petitioner of the fundamen-

tal fairness guaranteed by the Fourteenth Amendment. A

complaint had been filed with the district attorney’s offense

prior to the telephone conversations.

The right to counsel attached because

adversarial proceedings had been initiated.

Under Texas law, a complaini, which is the affidavit made

before a magistrate or prosecutor that charges the commission

of an offense, Tex.Code Crim.Pro. art. 15.04, initiates criminal

proceedings against an accused. See Wooldridge v. State, 653

S.W.2d 811, 814 (Tex.Cr.App.1983); Chapa v. State, 420

S.W.2d 943, 944 (Tex.Cr.App.1967). Accordingly, the Peti-

tioner’s Sixth Amendment right to counsel had attached prior to

the time the telephone conversations were made and recorded,

thereby rendering those conversations inadmissible at the Peti-

tioner’s trial under the express holdings in Massiah, Henry, and

Moulton.

The conversations constituted an abridgement of

the Petitioner’s right to the benefit of counsel.

Independent of whether the Petitioner’s right to counsel

had attached at the time of the telephone conversations, the fact

remains that his right to counse! had been asserted in the most

obvious form—the Petitioner’s attorney personally advised the

prosecutor that he (the Petitioner’s counsel) had been engaged

to represent the Petitioner in the charges that led to his

conviction in this case. By thereafter instigating the telephone

calls between Lowe and the Petitioner, the prosecutor inter-

fered with the Petitioner’s right to be represented by counsel in

his dealings with the state vis-a-vis the charges against him.

“(T]he right to the assistance of counsel is shaped by the

need for the assistance of counsel . . .”” Maine v. Moulton, supra,

U.S. at ___., 106 S.Ct. at 484. That guarantee would be

hollow indeed if it meant only that an accused had the right to

counsel at a given moment without the accompanying benefit of

counsel, such as the opportunity to be advised by counsel

during prosecutorial interrogation. The requirement that the

state “scrupulously honor’’> an accused’s right to counsel forms

the backbone of the holding in Massiah and its progeny.

Whatever else “honoring” the right to counsel may mean, it

certainly means that the prosecutor may not arrange a surrep-

titious interrogation of the accused and purposefully exclude

the presence and input of his counsel, whose existence as the

accused’s counsel is known to the prosecutor, knowing that “the

results [of the interrogation] might well settle the accused’s fate

and reduce the trial itself to a mere formality.” United States v.

5 Since the invocation of the right to counsel during interrogation

must be “scrupulously honored,” Michigan v. Moseley, 423 U.S. 96

(1975), the assertion of that right in the form of retaining counsel is

entitled to no less respect by the prosecutor.

Wade, 388 U.S. 218, 224 (1967).§ Having been notified by the

prosecutor that criminal charges had been preferred against

him, the Petitioner availed himself of his Sixth Amendment

right to counsel and retained counsel to represent him. His

counsel then advised the prosecutor of such fact and relation-

ship. Under these facts, it is inconsistent with the right to

counsel to say that the prosecutor was free to deprive the

Petitioner of the benefit of his counsel by arranging for a secret

interrogation that he knew or should have known would occur

in counsel’s absence. The right to counsel has no substance if

the fundamental benefits it is intended to furnish are callously

denied an accused by a prosecutor who purposefully elicits

incriminating statements about the offense with which the

accused is charged in the manner effected in this case.

The conversations wece obtained under circumstances that are

so offensive as to constitute a denial of fundamental fairness

The Fourteenth Amendment protects persons accused of

crimes from state action that offends beliefs “fundamental to

the ‘traditions and conscience of our people.’” Moran v. Bur-

bine, supra, U.S. at __., 106 S.Ct. at 1147, quoting

Rochin v. California, 342 U.S. 165, 169 (1952). There are

situations where prosecutorial deception violates due process.

See, e.g., Miller v. Pate, 386 U.S. 1 (1967); Alcorta v. Texas,

355 US. 28 (1957). “[D]ue process requires fairness, integri-

ty, and honor in the operation_of the criminal justice system,

6 We are not unaware of the statements in Moran v. Burbine,

supra, that the Sixth Amendment right to counsel does not attach “at

different times depending on the fortuity of whether the suspect ...

happens to have retained counsel prior to interrogation” because,

“Tb]y its very terms, it becomes applicable only when the govern-

ment’s role shifts from investigation to accusation.” Jd., 106 S.Ct. at

1146. But in the case sub judice, the government’s role, played by the

prosecutor (not the police, as if Moran v. Burbine), was that of an

accuser, not an investigator. A complaint had been filed with the

prosecutor, of which the Petitioner was notified. We do not challenge

the holding or the wisdom of Moran v. Burbine because, quite simply,

has no application to the Petitioner’s claim.

: 9

and in its treatment of the citizen’s cardinal constitutional

protections.” Moran v. Burbine, supra, US. Ot 15/806

S.Ct at 1165 (dissenting opinion of STEVENS, J.).

The Court of Appeals condemnation of the prosecutor’s

conduct in using Lowe to deliberately obtain incriminating

information from the Petitioner, as being violative of a dis-

ciplinary rule governing Texas lawyers, Henrich v. State,

Appendix A, was not changed on review by the Court of

Criminal Appeals. That court merely concluded that the

violation of those rules did not require exclusion of the tapes

under Texas law. If, as stated by Mr. Justice Stevens, “‘a lawyer

is seen as an aid to the understanding and protection of

constitutional rights, “Moran v. Burbine, supra, US. at

—___, 106 S.Ct at 1166, a violation of state disciplinary rules

that also directly conflicts with the specific holdings of Massiah,

Henry, and Moulton is inconsistent with the “fairness, integrity,

and honor in the operation of the criminal justice system”

required by due process any more than is the purposeful use of

false testimony.

CONCLUSION

~— Awrit of certiorari should be granted in this case to allow

for the resolution, on the merits, of the federal constitutional

issue not discussed by the state appellate courts, and to apply to

10

this case the well-settled decisions of this Court upon which the

Petitioner relies.

Respectfully submitted,

MELVYN CARSON BRUDER

11817 Quincy Lane

Dallas, Texas 75230

(214) 351-5597

EDGAR A. MASON

12221 Merit Drive

Suite 850 |

Dallas, Texas 75251

(214) 991-0200

Counsel for Petitioner

CERTIFICATE OF SERVICE

This is to certify that three copies of the foregoing Petition

for A Writ of Certiorari were served upon Jim Mattox, Attorney

General of the State of Texas, at his offices in Austin, Texas, via

first class United States, postage prepaid, on the 19th day of |

January 1987. |

MELVYN CARSON BRUDER

APPENDIX A

COURT OF APPEALS

FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT DALLAS

NO. 05-82-00819 CR

CHARLES MICHAEL HENRICH From A DISTRICT COURT

Appellant,

Vs.

THE STATE OF TEXAS, OF DALLAS COUNTY, TEXAS

Appellee.

BEFORE JUSTICES STEPHENS, GUILLOT AND ROWE

OPINION BY JUSTICE GUILLOT

DECEMBER 12, 1983

This is an appeal from a conviction for theft of property of

the value of $10,000 or more for which the jury assessed a

punishment of five years and a fine of $10,000. Because the

trial court failed to grant appellant’s motion to suppress, we

reverse and remand the case to the trial court.

At the outset we must point out that this is a case of first

impression dealing with the issue of whether a violation of

Supreme Court of Texas, Rules Governing the State Bar of

Texas art. XII Section 8 (Code of Professional Responsibility )

DR 7-104 (1973)1 results in the suppression of evidence

pursuant to TEX. CODE CRIM. PROC. ANN. art. 38.23

(Vernon 1979).

Appellant and an accomplice, Walter Lowe, made false

invoices for material that was never shipped to their employer,

Lone Star Gas. When the invoices were paid, appellant and

1 Hereinafter cited as Texas Code of Professional Responsibility.

A-2

Lowe would pocket the money. Lone Star Gas discovered the

fraud and filed a complaint with the District Attorney’s office.

The District Attorney wrote appellant and Lowe informing

them of the complaint. Lowe then retained an attorney who

accompanied him to the office of Steve Knoury, the assistant

district attorney assigned to the case. There Lowe, at Khoury’s

instructions, agreed to tape phone conversations with appellant.

He did so on three separate occasions. It is undisputed that at

the time Khoury told Lowe to tape the conversations he knew

that appellant had already retained a lawyer.

DR 7-104 provided in pertinent part that:

(A) During the court of his representation of a client a

lawyer shall not:

(1) Communicate or cause another to communicate

on the subject of the representation with a party

he knows to be represented by a lawyer in that

matter unless he has the prior consent of the

lawyer representing such other party or is author-

ized by law to do so.

In his first ground of error, appellant contends that the

court erred in overruling his motion to suppress the taped

conversations which were obtained in violation of state law.

The crux of appellant’s argument is that DR 7-104, Texas Code

of Professional Responsibility, prohibited the assistant district

attorney from causing the phone conversations to be made. He

further contends that because of such prohibition, the evidence

on the tapes was admitted in violation of TEX. CODE CRIM.

PROC. ANN. art. 38.23 (Vernon 1979) which, simply put,

states that no evidence obtained in violation of state law can be

admitted.

The first question we must address is whether the dis-

ciplinary rules of the Code of Professional Responsibility have

the status of law. The courts have held that they have the same

force and effect as the Texas Rules of Civil Procedure have to

"t —_-

A-3

the matters to which they relate. State ex re/. Chandler v.

Dancer, 391 S.W.2d 504 (Tex. Civ. App.—Corpus Christi

1965, writ ref'd n.r.e.); Rattikan Title Co. v. Grievance Com-

mittee of the State Bar of Texas, 272 S.W.2d 948 (Tex. Civ.

App.—Fort Worth 1954, no writ). The next question, then, is

what force and effect have the Rules of Civil Procedure? The

Rules of Civil Procedure have the same force and effect as

statutes. Missouri Pacific Railroad Co. v. Cross, 501 S.W.2d

868 (Tex. 1973); Freeman v. Freeman, 160 Tex. 148, 327

S.W.2d 428 (1959). Consequently, when the assistant district

attorney violated DR 7-104, it was the same as violating a

statute. Because the evidence obtained through the taped

conversations was obtained in violation of a statute, the trial

judge should have granted appellant’s motion to suppress

pursuant to TEX. CODE CRIM. PROC. ANN. art. 38.23

(Vernon 1979). We sustain appellant’s first ground of error

and reverse and remand.

PATRICK C. GUILLOT

JUSTICE

PUBLISH

APPENDIX B

‘ NO. 140-84

CHARLES MICHAEL HENRICH,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

Petition for Discretionary Review

from the

Court of Appeals,

Fifth Supreme Judicial District of Texas

(DALLAS COUNTY)

OPINION ON STATE’S PETITION

FOR DISCRETIONARY REVIEW

Appellant was convicted of theft of property of the value of

$10,000 or more. The jury assessed punishment at five years’

imprisonment and a fine of $10,000.

On appeal the appellant contended the trial court erred in

denying his motion to suppress certain tape recordings for the

reason that the tapes were obtained in violation of state law.

The Dallas Court of Appeals noted the question was one of first

impression—whether a violation of Supreme Court of Texas,

Rules Governing the State Bar of Texas art. XII, § 8 (Code of

Professional Responsibility), DR 7-104 (1973) results in the

suppression of evidence pursuant to Article 38.23, V.A.C.C.P.

That court held that DR 7-104 had the status of law, that the

disciplinary rules of the Code of Professional Responsibility

have the same force and effect as the Texas Rules of Civil

Procedure as to matters to which they relate, that the said Rules

of Civil Procedure have the same force and effect as statutes,

B-2

and that when the assistant district attorney violated DR 7-104,

the Court should have granted the motion to suppress the tape

recordings pursuant to the provisions of Article 38.23,

V.A.C.C.P. The Dallas Court of Appeals thus sustained this

first ground of error and reversed the conviction. Henrich v.

State, 666 S.W.2d 185 (Tex.App.—Dallas 1983). We granted

the State’s petition for discretionary review to determine the

correctness of the decision by the Court of Appeals.

Appellant, an employee of the Lone Star Gas Company,

and an accomplice, who was in the forms business, created false

invoices in the name of bogus companies for material which

was paid for, but never shipped to the Lone Star Gas Company.

Appellant and his accomplice pocketed the money paid by

Lone Star Gas Company. The gas company discovered the

thefts and appellant was questioned about the irregularities in

the purchasing department. The matter was brought to the

attention of the District Attorney.

During the investigation of the case, the District Attorney’s

Office sent notices to the appellant and his accomplice, Walter

Paul Lowe. Both Lowe and appellant retained counsel. Lowe

and his attorney went to the District Attorney’s office. Assistant

District Attorney Steve Khoury asked for Lowe’s cooperation in

the investigation, and asked Lowe to tape record any telephone

conversations he had with the appellant. At the time Khoury

knew appellant was represented by counsel, but it was during

the course of an investigation and the indictment against the

appellant was not returned until several months later. Khoury

explained at the suppression hearing his request to Lowe was to

make sure that Lowe’s story to the prosecution could be verified

and confirmed, to prevent the appellant from taping conversa-

tions with Lowe and distorting them at a later date, and finally

to discover facts important to the criminal investigation and any

later indictment. While the record is not as clear as it could be,

it appears that taped recordings were made in the district

attorney’s office when Lowe returned telephone calls originally

B-3

made by the appellant. Lowe was instructed not to talk to

appellant without the tape recorder being in operation. Three

such conversations were taped, two in August, 1981 and one in

September, 1981. It was Khoury’s testimony that he never

personally communicated with the appellant.

Article 38.23, V.A.C.C.P. (1965), provides in part as

follows:

“No evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws of

the State of Texas, or of the Constitution or laws of the

United States of America, shail be admitted in evidence

against the accused on the trial of any criminal case.”

(Emphasis supplied. )

Said DR 7-104 provides, in pertinent part, that:

“(A) During the course of his representation of a

client a lawyer shall not:

(1) Communicate or cause another to com-

municate on the subject of the representation with a

party he knows to be represented by a lawyer in that

matter unless he has the prior consent of the lawyer

representing such other party or is authorized by law to

do so.” (Emphasis supplied. )

The very question before the Dallas Court of Appeals was

before this Court only shortly thereafter in Pannell v. State, 666

S.W.2d 96 (Tex.Cr.App. 1984), which involved DR 7-104.

There we held that the disciplinary rules of the Code of

Professional Responsibility are not “laws” of the State of Texas

as contemplated by Article 38.23, supra. For the reasons stated

therein, we adhere to our decision in Pannell."

1 In Roy v. State, 608 S.W.2d 645, 651 (Tex.Cr.App. 1980), this

Court rejected the “novel” proposition that evidence (videotape )

should be suppressed under Article 38.23, supra, because the Sha-

detree Landscaping Company (a police “sting” operation to appre-

hend thieves) was not registered under the Assumed Name Statute.

Tex. Bus. and Comm. Code, Article 36.10.

B-4

Although the State argues there are additional reasons? to

reverse the judgment of the Court of Appeals, we rest our

decision on Pannell.

2 In his brief the District Attorney argues that even if DR 7-104

has the status of “law” within the meaning of Article 38.23, supra, the

rule has no application to the facts in the instant case. He points out

the Assistant District Attorney did not personally communicate with

the appellant and did not cause Lowe to communicate with the

appellant as it was the appellant who initiated each conversation.

Lowe only returned the call once he was prepared to tape the

conversation.

The State’s Prosecuting Attorney (before the Court of Criminal

Appeals) also argues that if DR 7-104 has the status of “law” the

Court of Appeals overlooked the fact the prohibition contained

therein applies “unless he ... is authorized by law to do so.” The

argument is advanced that the prosecuting attorney is authorized by

law to investigate alledged criminal violations and that is what the

assistant district attorney was doing in the instant case, that prose-

cution necessarily entails investigation and that it is his duty not only

to “make cases” against the guilty but to protect the innocent and see

that justice is done. Cf. Article 2.01, V.A.C.C.P.

In Shepperd v. Alaniz, 303 S.W.2d 864 (Tex.Civ.App.-San

Antonio 1957), it was stated:

“It has always been the principal duty of the district and

county attorneys to investigate and prosecute the violation of all

criminal cases, including the election laws, and these duties

cannot be taken away from them by the Legislature and given to

others.” (Emphasis supplied. )

In Thomas v. Cisneros, 596 S.W.2d 313 (Tex.Civ.App.-Austin

1980), the Court, at p.318, wrote:

“Having received this information revealing a possible

crime, it was the duty of the District Attorney to investigate and

determine whether appellant had been joking ... and any other

circumstances material to the mens rea required by Section 36.06

of the Penal Code.” (Emphasis added.) See also Missouri, K. &

T. Ry. Co. of Texas v. Groseclose, 110 S.W. 477 (Tex.Civ.App.

1908, no writ history); Johnson v. Miller, 69 lowa 562, 29 N.W.

743, 750 (1886); Attorney General’s Opinions H-167

(11/30/73) and M-1180 (7/26/72); 27 C.J.S. 670-671, District

and Pros. Attys., § 14(1); A.B.A. Standards for Criminal Jus-

tices, 2nd Ed., Standard 3-3.1.

The Siate’s Prosecuting Attorney believes the exception in DR 7-

104 is here applicable.

——

B-5

The judgment of the Court of Appeals is reversed and the

cause remanded for consideration of other grounds of error

urged.

ONION, Presiding Judge

Teague, J., dissents for reasons stated in his dissent in Pannell.

Clinton, J., not participating.

(Delivered July 24, 1985)

En banc

Publish

APPENDIX C

Court OF APPEALS

FIFTH SUPREME JUDICIAL District OF TEXAS

AT DALLAS

No. 05-82-00819-CR

CHARLES MICHAEL HENRICH, FROM A DISTRICT COURT

Appellent,

¥.

THE STATE OF TEXAS, of Dallas County, Texas

Appellee.

BEFORE JUSTICES STEPHENS,

GUILLOT, AND MCCLUNG

OPINION BY JUSTICE GUILLOT

September 25, 1985

On remand from the Court of Criminal Appeals, we

withdraw our former opinion and substitute the following.

This is an appeal from a conviction for theft of property

with a value of $10,000 or more, for which the jury assessed a

punishment of five years and a fine of $10,000. We affirm the

conviction.

Appellant and an accomplice, Walter Lowe, made false

invoices for material that was never shipped to their employer,

Lone Star Gas. When the invoices were paid, appellant and

Lowe would pocket the money. Lone Star Gas discovered the

fraud and filed a complaint with the District Attorney’s office.

The District Attorney wrote appellant and Lowe informing

them of the complaint. Lowe then retained an attorney who

accompanied him to the office of Steve Khoury, the assistant

district attorney assigned to the case. There Lowe, at Khoury’s

instructions, agreed to tape phone conversations with appellant.

C-2

He did so on three separate occasions. It is undisputed that at

the time Khoury told Lowe to tape the conversations he knew

that appellant had already retained a lawyer.

In his first ground of error, appellant contends that the

court erred in overruling his motion to-suppress the taped

conversations which were obtained in violation of state law.

The crux of appellant’s argument is that DR 7-104, Texas Code

of Professional Responsibility, prohibited the assistant district

attorney from causing the phone conversations to be made.

DR 7-104 provides in pertinent part that:

(A) During the course of his representation of a client a

lawyer shall not:

(1) Communicate or cause another to communicate

on the subject of the representation with a party

he knows to be represented by a lawyer in that

matter unless he has the prior consent of the

lawyer representing such other party or is author-

ized by law to do so.

He further contends that because of such prohibition, the

evidence on the tapes was admitted in violation of TEX. CODE

CRIM. PROC. ANN. art. 38.23 (Vernon 1979) which, simply

put, states that no evidence obtained in violation of state law

can be admitted. This contention was overruled in Pannell v.

State, 666 S.W.2d 96 (Tex. Crim. App. 1984) (en banc). We

do likewise.

In his second ground of error, appellant contends that the

trial court erred in denying his motion to suppress the evidence

obtained from appellant’s briefcase for the reason that such

evidence was obtained during an illegal search. Contending

that Vernon’s Ann. C.C.P. art. 38.23 restricts searches by those

who are not government officials, appellant states that the

private investigator hired by Lone Star Gas could not search his

briefcase. We need not reach this issue as the record reflects

that appellant consented to the private investigator’s exam-

C-3

ination of the contents of appellant’s briefcase. Whether

appellant’s consent to allow examination of the briefcase was

voluntary must be determined from the totality of the circum-

stances. Paprsker v. State, 484 S.W.2d 731, 737 (Tex. Crim.

App. 1972). The totality of the circumstances in the instant

case shows that the consent was voluntary. We' overrule

appellant’s second ground.

In his final ground of error, appellant contends that the

trial court erred in overruling his best evidence objection to

Walter Lowe’s testimony concerning the taped conversations.

The record reflects that the tapes were played to the jury; that

appellant had the opportunity to cross-examine Lowe on his

testimony as to what was stated in the tapes; and that Lowe’s

testimony was offered in lieu of the tapes. We overrule this

ground.

Affirm.

PATRICK C, GUILLOT

Justice

PUBLISH